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Week In Review: Tsk, Tsk To EEOC For Two Questionable Moves (#SMH)

February 26, 2016

By Michael G. McClory

The Bullard Edge is committed to helping you understand the employment law week that was. This week the EEOC caught our attention with a pair of actions that raise eyebrows. In one move, the agency modified its charge processing procedures in a manner that disadvantages employers. In the other move, the EEOC proposed a rule for federal employers only ~ for now.

We are going to cover these two stories below, before leaving you with a happy reunion story for the weekend.

Story #1: EEOC Adopts Nationwide Policy Favoring Claimants

Despite the sincerity of the EEOC compliance officers with whom employers interact on a regular basis, there is a perception that the agency is employee-oriented (it may be the world’s best funded plaintiff’s firm). On the one hand, EEOC is responsible for enforcing federal laws prohibiting employment discrimination on the basis of race, color, religion, sex, national origin, age, disability, and genetic information. The agency advertises that its private sector enforcement program provides “quality services that are fair and prompt for both employees and employers” and describes this as “vital” to EEOC’s mission.

Despite this proclamation of neutrality, EEOC’s low-key February 18, 2016 press release was more disappointing than surprising. EEOC matter-of-factly announced that it had retroactively changed its procedures in a way that directly favors claimants and disadvantages employers.

“EEOC has implemented nationwide procedures that provide for the release of [employer] Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination.”

(Presumably, the same procedure will be in effect when the charging party is male.)

In the past, after receiving a discrimination complaint from an employee or former employee, EEOC provided the employer with a fairly bare-bones description of the allegations and requested that the employer respond to those allegations by submitting a position statement and relevant documents. The agency used that information to test a claimant’s story. Importantly, though, the claimant did not receive a copy of the position statement.

New day, new game. Now, the former practice is out the window. Under EEOC’s new procedure, the agency has committed to advantaging complainants.

“EEOC will provide the [employer’s] Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. The Charging Party's response will not be provided to Respondent during the investigation.”

Arguably, this is more symbolic than substantive. The essential substance of an employer’s response is not going to change. However, employers ought to keep at least two things in mind when responding to EEOC charges.

EEOC says it will not be releasing “confidential” information. Employers are going to want to make sure that any confidential information produced to EEOC is clearly marked as confidential.

Because the position statement is going to be provided to the complaining party, employers may want to respond in an extremely concise manner, focusing only on the facts needed for EEOC to dismiss the complaint. In particular, they may want to provide less information by way of background.

On February 24, 2016 EEOC published a proposed rule that would require federal agencies to take affirmative action in the employment of individuals with disabilities. As explained in EEOC’s press release, the proposed rule “would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities.”

The Bullard Edge supports the removal of barriers to the employment of individuals with disabilities. That being said, we have three comments on this proposal.

It is not presented as a quota and we do not anticipate that EEOC will treat it as such. That is a good thing. Quotas act as barriers to the employment of individuals who are the best qualified for the position.

As a 9-month old kitten, Clive the Cat disappeared from his home in October 2014. Tanya, Clive’s owner, searched high and low for her cat to no avail.

Fortunately, searchers recently found Clive with the help of a vet-installed microchip. (We will set aside questions as to why it took 16 months to go this route.) Searchers identified an address in Toton, England (Clive is from England ~ there was no international travel involved), went to that address, and found Clive healthy and happy. The address, by the way, was for a pet food warehouse. (For more about Clive, check out this link and this one.)